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Tonight, at 9/8 Central on HBO, comes the long-awaited premier of Plaintiff’s attorney Susan Saladoff’s anti-tort reform documentary, Hot Coffee. We here at Abnormal Use have taken a special interest in the film since its original debut at the Sundance Film Festival in January. We have highlighted the background and potential bias of the film’s maker and prepared a detailed (and objective as can be) FAQ file on the infamous Stella Liebeck McDonald’s hot coffee lawsuit from which the documentary derives its name. In so doing, we have received many comments criticizing us for “reviewing” the film prior to having seen it. In fact, we were even accused of perpetrating a “dirty corporate disinformation campaign.” Well, after months of requesting a copy of the film from Saladoff, her publicity firm, and ultimately, HBO, we here at Abnormal Use obtained an advance screener. With that DVD in hand, we now offer our official review and commentary on this well publicized film.

Written and produced by Saladoff, the film offers four case studies to illustrate the alleged dark side of tort reform. Beginning with the Liebeck case, Saladoff argues that corporations improperly exploited that famed case to promote massive tort reform. Specifically, Hot Coffee alleges that the American Tort Reform Association and the United States Chamber of Commerce misrepresented the Liebeck case and duped many state legislatures into passing caps on certain recoverable damages. Further, the film suggests that these advocacy groups devastated America’s civil justice system by funding the judicial campaigns of candidates willing to serve corporate interests at the expense of consumers and sympathetic Plaintiffs. (The film points to three other cases, as well, though they are less famous than the Liebeck case.).

Those who see the documentary may likely be persuaded of the “evils of tort reform.” Saladoff brilliantly selects cases that tug on the emotional heart strings of even the most stoic of viewers. After witnessing the struggle of parents attempting to provide for a brain damaged child or hearing a woman explain her unsuccessful quest for a jury trial after being brutally raped by co-workers, uninformed viewers may leave the film with a distaste for tort reform – at least as Saladoff presents it. As a filmmaker and “documentarian,” Saladoff is persuasive, and she has garnered much attention from Hollywood for her efforts. (Indeed, non lawyer film critics are falling for her propaganda). Cynical as we are, and willing to dig deeper than casual viewers, we here at Abnormal Use are not so easily persuaded. Once one cuts through Hot Coffee‘s emotionalism, we see a film that exploits the McDonald’s case and other sympathetic litigants to promote Saladoff’s own personal agenda.

Call us crazy, but we thought a film entitled, Hot Coffee, would mostly be about, well, the hot coffee case. After all, the film’s website heralds: “Hot Coffee reveals what really happened to [famed McDonald’s hot coffee Plaintiff] Stella Liebeck . . .” and that “[a]fter seeing the film, you will decide who really profited from spilling hot coffee.” Saladoff told IndieWire: “The McDonald’s coffee case is the most famous case in the world, and yet almost everyone has it wrong.” Those are bold statements. Yet the 88 minute film dedicates only ten minutes to the Liebeck case. If the Liebeck litigation has become the “most famous case in the world” and misunderstood by the American public, Saladoff could have dedicated the entire film to debunking any purported misperceptions. Certainly, that’s what the title suggests she planned to do. But that’s not what she’s done. In reality, the McDonald’s case is nothing more than a cinematic hook to bring viewers to Saladoff’s more general propaganda.

Despite the short shrift the Liebeck case receives in the film, Saladoff argues that there are certain facts of the Liebeck case that were either somehow concealed from the public or never brought to light which, if known, would change the perception of the case from frivolous to somehow meritorious. Those facts are these:

(1) Liebeck spilled coffee while a passenger in a parked car, not as a driver in a moving vehicle;

(5) McDonald’s only offered Liebeck $800 to settle the litigation; and

(6) The jury’s punitive damages award was reduced to $800,000.

In selectively presenting these facts in this fashion, Saladoff contends Liebeck’s lawsuit was meritorious simply because she suffered actual damages and failed to show any desire to get-rich-quick. Unfortunately, it is not the presence of actual damages and a noble spirit which keeps a case from being frivolous. In fact, Saladoff neglects to address the point often made here at Abnormal Use: coffee is meant to be served hot and does not become “unreasonably dangerous” until negligently spilled by the consumer. This past week, when asked about our assertions on National Public Radio, Saladoff skirted around the issue, citing the same line that McDonald’s knew that hot coffee was, in fact, hot. Apparently, any effort to challenge her on that point is just another dirty corporate disinformation campaign.

Although the film makes much ado about corporate attempts to influence the process, the role of trial lawyer and civil justice groups is surprisingly omitted. (Apparently, it is only corporations that fund promotional campaigns to influence the judiciary and the electorate.). Nevertheless, the film criticizes corporations for hiring PR firms and hiding behind benevolent sounding front groups like the American Tort Reform Association, the U.S. Chamber of Commerce, or the Citizens Against Lawsuit Abuse. Saladoff herself, however, has a long history of being involved in opposing groups, such as the Trial Lawyers for Public Justice and the American Association for Justice. Of course, Saladoff would have you believe that these groups are noble entities formed to protect our citizens which would never participate in such conduct. Right.

Hot Coffee also documents the story of Oliver Diaz, a former Mississippi Supreme Court Justice, to accuse the U.S. Chamber of Commerce of funneling money into the judicial campaigns of pro-tort reform candidates. The film suggests that Diaz found himself running against a candidate hand picked and funded by the Chamber. But here’s the catch: the film concedes that trial lawyers often donate to their own judicial candidates. But the film attempts to minimize this fact by noting that trial lawyers are limited by law in the amount of money they can donate. This seems a bit unfair, right? Big corporations are buying seats for judges while trial lawyers must sit idly by due to unfair, oppressive campaign finance laws? Is the story truly so bleak for trial lawyers and their own advocacy groups? Not really.

First, Diaz actually won his election thanks to a hefty donation from prominent trial lawyer, Paul Minor (whose well-publicized 2007 conviction for judicial bribery six counts of honest services mail fraud, two counts of judicial bribery, one count of honest services wire fraud, and one count of racketeering you might recall (though in full disclosure, the Fifth Circuit reversed the feberal bribery convictions in 2009, though, Minor was recently re-sentenced to eight years in prison in connection with the other charges.). Second, famous plaintiff’s attorney Richard Scruggs, referred to certain Mississippi counties as “magic jurisdictions,” which he defined as:

[W]here the judiciary is elected with verdict money. The trial lawyers have established relationships with the judges that are elected. . . .They’ve got large populations of voters who are in on the deal, their getting their [piece] in many cases. And so, its a political force in their jurisdiction, and its almost impossible to get a fair trial if you are a defendant in some of these places. . . . These cases are not won in the courtroom.

For some reason, Saladoff neglected to include that information. And, we thought it was tort reform which was trying to close the courtroom doors?

The film also chronicles the cases of Colin Gourley, a boy who sustained brain damage as the result of medical malpractice during his mother’s pregnancy and delivery, and Jamie Leigh Jones, a woman raped and imprisoned while working for Halliburton subsidiary KBR in Iraq. By using these tragic and sympathetic stories, Hot Coffee garners sympathy for the anti-tort reform movement while deflecting attention away from the fact that it is not just plaintiffs who benefit by opposing tort reform. Of course, trial lawyers like Saladoff benefit in the best of ways: financially. The larger the verdict for the plaintiff, the larger the payday for the trial lawyer. It is noble to stand up for those who may have been wronged, but don’t present yourself as a disinterested party and cloak yourself in the guise of pure altruism when doing it.

Our original piece chronicling Saladoff’s history as a plaintiff’s lawyer and longtime affiliation with the Association of Trial Lawyers of America rang truer than we even realized. In fact, it was cited just yesterday in The New York Times by its legal correspondent John Schwartz who, however, downplayed Saladoff’s possible lack of objectivity. (We wonder what Schwartz would think about an environmental film produced by an oil company.). Schwartz did concede, though, that Saladoff is an “advocate.” As editorialists ourselves, we would never object to someone simply expressing a point of view; we love the vast marketplace of ideas (though we find Saladoff’s background highly relevant to the message she offers). In this case, our goal is, and has always been, to expose potential bias and inconsistency, especially in light of the film’s presentation as an objective documentary peddling in previously unknown “truths.” Just as Saladoff accuses the media of exploiting an allegedly meritorious hot coffee case, Hot Coffee is guilty of the same offense. Saladoff preys on the emotions of viewers to advance her profession’s own special interests.

Saladoff declined multiple requests from Abnormal Use for interviews, both in January and this week prior to the film’s HBO premier. (Actually, she initially accepted an interview request in January, then canceled at the last minute after the interview had been scheduled, and we never heard from her again.).

I wasn’t clear on the nature of the Colin Gourley case. The NYT says he got cerebral palsy from medical malpractice. Is that the case in this instance? Or was this another case arising from the long-debunked argument that C-sections can prevent CP?

No Hal. In this case a doctor, who had previously been negligent, failed to diagnose or investigate a medical problem involving twins feeding off one placenta. When the problem was correctly diagnosed it was apparent that the second twin was suffering ongoing brain damage. But the hospital failed to act quickly according to its own standards. The jury award was $5.6 million to care for the brain damaged boy for life but caps reduced that to an amount barely adequate to pay the lawyers. The child is now cared for by the taxpayers.

This past week, when asked about our assertions on National Public Radio, Saladoff skirted around the issue, citing the same line that McDonald’s knew that hot coffee was, in fact, hot. Apparently, any effort to challenge her on that point is just another dirty corporate disinformation campaign.

Thanks for the link to the interview. But I listened, and I’m not sure how Saladoff skirts the issue. She mentions that Liebeck was found 20% at fault and McDonald’s 80% due to previous complaints. Not her fault what the jury found. She may be intentionally avoiding your phone calls and interview requests, but “skirting the issue” in this interview is a little much. Of course, you (like Saladoff and everyone else on the planet) do have an agenda when you write things like this.

You guys should make a documentary about the lost pants and Taco Bell lawsuits. Oh, wait. Nothing came of those actions.

By “skirting around,” we meant to imply that, to our knowledge, Saladoff has never, either in her interviews or documentary, responded to the central premise of her critics that coffee is a beverage meant to be served hot. In her reference to the jury’s allocation of fault, Saladoff addresses only Liebeck’s act of spilling the coffee placed between her legs. As we have suggested all along, coffee by its nature is meant to be served hot. Our guess is that Liebeck would have been disappointed and may have even complained had she been served coffee at a lesser temperature. This issue was presented to Saladoff in the interview, but we found Saladoff’s answer non-responsive.

Coffee served at 135-155 degrees F is plenty hot, but still less likely to disfigure someone than 180 degree F coffee – something I believe the movie more or less mentions with regard to the holding temperature for McDonald’s Coffee. And I can’t really imagine someone complaining because the coffee they received was merely piping hot rather than literally scalding. (Perhaps a masochist.)

There are three distinct issues here that I think are being conflated: brewing, holding and serving temperature. Coffee needs to be brewed at around 180 F (or else it won’t brew properly) and then served and consumed at a lower temperature. McDonald’s decided to hold its coffee at an unreasonably high temp because it was better for their bottom line, as noted in other comments.

To such end, I fail to see a disclosure in your article about your potential bias as a personal injury defense lawyer. This might be important in light that your blog is quoted in several other pieces.

Personally, I don’t believe that’s a fair criticism. One should judge the idea, not the author. If we discredit someone simply because they have a background, then we’re left with a word full of people that lack credibility.

Also, the FAQ section dealing with Liebeck’s cases curiously lacks any discussion about the economic motives of McDonald’s to brew its coffee at higher temperatures. Namely, they could produce ten more cups of coffee from a 10 lb bag of coffee by brewing at the 180-190 temperature range as opposed to the recommended 140-160.

J.J., thanks for the comment. We would respond and say that the brief section at the top of our left sidebar clearly identifies us as defense attorneys and lists our practice areas. As for the economic argument and the FAQ file, we’d love for the Plaintiffs’ attorneys to release the trial transcript to see if and when that argument was made during the trial.

Sorry Nick, the film is not only about the McDonald’s case, and who would have watched 88 minutes on that. You neglect to mention that 700 people were burned (according to McDonalds) by coffee heated to 180-190 degrees, enough to cause catastrophic burns. In her case it did.
Most of the award was punitive damages for McDonalds’ disregard for the safety of customers, when it had the data and should reduced the empirical danger of TOO HOT coffee. (Their coffee is now served at 170.)
You falsely state that the judge in the judge received a “hefty donation from prominent trial lawyer, Paul Minor” apparently a bad guy. It was not a donation. It was a loan guarantee signature.
You equate the filmmaker’s membership in legal organizations with the creation by Karl Rove and the Chamber of Commerce fake grassroots (AstroTurf) groups which hold themselves out to be “citizens” grassroots groups. A big difference.
Also you fail to address the powerful charge that citizens are being coerced and fooled into giving up their rights to trial by jury through arguably sneaky clauses, as in the case of the woman drugged and raped by Haliburton employees…she had no recourse.
If you accuse someone of distorting the facts you should be very careful about framing your argument in a glass house.

Saw the Hot Coffee HBO piece. I agree it was somewhat slanted in it’s presentation but it covered a lot of ground in less than an hour – from hot coffee to forced arbitration clauses. It could have been more of a “hit” piece if it had gotten into detail as to the secret arbitration clauses and the fact that more and more people are being forced into arbitration (lawyers, doctors,m products, real estate etc.) and finding out what arbitration costs – and the fact that rules of evidence are essentially nullified. The average person cant afford a Kaiser arbitration, for example On the other hand, an appellate court in California has recently held that a person injured in a “bumper car ” when her car was “bumped” (which is what one does in a bumper car) did not assume the risk of an injury and could sue for her injury that occurred when she braced for an “impact”.

The point of the discussion is this: There are attacks on governmental regulation of everything, and these attacks are widespread and unceasing. Just for example, the attacks on OSHA and other laws which protect workers. Fine, we get rid of these laws. But there are also attacks on the Unions. Fine, we get rid of unions. Now, what is left? Nothing. Same with these attacks on the tort system. The attacks on government regulation AND the court and jury system will leave — Nothing. Note: The reasons unions are dying and are at their lowest membership level is because of the effective government regulatioin of the workforce. In effect, good regulation has been slowly killing the unions. Roll back those government protections and the unions grow again as a necessary offset. Get rid of both and we have an unliveable society of child-labor and sweatshops.

The fact is that our tort system gave us the safest and best products the world has ever seen — the envy of the world, in fact. Don’t like seatbelts or motorcycle helmets? Go to the Third World.

All of those people who prefer the unregulated market should have lived in the Second World countries (the communist countries, as I did for a while) because, while the macro-market was regulated, there were very few consumer protections.
You would have LOVED the unsafe devices, the environmental damage from the lack of environmental regulation (because that cost money and could hurt jobs). If you really prefer the unregulated market and believe that it is so great, you really ought to see “Slumdog Millionaire” and then move to India. Because that is where that race to the bottom takes you: A very small wealthy class, a small middle class, and a whole lot of folks living in abject poverty. The unregulated market has been tried and it FAILS.
Read this for a good take on your vaunted free market libertarian model:http://www.ginandtacos.com/2008/08/31/atheistsfoxholes-libertariansairplanes/

Yeah, I know this blog originates in Greenville, but I know of no religious authority for the idea that Jesus Christ was a free-market libertarian — except Bob Jones, perhaps.

And I would like to see this blog address the fact that tort reform legislation passed in various states has NOT brought down insurance rates in those states. Why is that not an important fact which needs to be discussed?

You are correct in that the film is not only about the McDonald’s case, but I do believe that us defense nerds would have loved to see an 88-minute expose on the subject.

If you re-read the section of my review documenting the facts presented in the film, I actually did mention the 700 prior burns. That piece of evidence is often quoted and it does raise some interesting issues. Through our research, we have reason to believe that the 700 burns were not exclusively from coffee (or any other hot beverage for that matter). In any event, McDonald’s has sold over a billion cups of coffee, so even at 700, the number of burns is miniscule (according to the testimony of the human factors expert at trial).

The evidence presented at trial indicated that Ms. Liebeck would have suffered the same extent of burns had she been served coffee at a temperature as low as 130 degrees. The National Coffee Association actually recommends that coffee be brewed at a temperature between 195-205 degrees. In addition, coffee is typically served in the 170-180 degree range even today.

As far as Paul Minor is concerned, we can let the record speak for itself.

Also, the differences you indicate between the Chamber of Commerce and the ATLA are a bit overstated. While the ATLA may not disguise its membership, they, like the Chamber, participate in many of the same types of campaigns and tactics to spread their own message.

We haven’t addressed the mandatory arbitration issue for a reason. Our interest in this documentary derived primarily from our interest in the hot coffee case itself. For that reason, much of our discussion has focused on that issue with a bit of tort reform overlay.

As always, we appreciate all of the comments, and we enjoy having these discussions with our colleagues.

Thanks for a courteous reply Nick. We’ll have to agree to disagree about your chief concern. I just don’t buy that 130 degree liquid would cause burns requiring skin grafts (although the age of the victim may have been a factor). I think brewing temperature and serving temperature can and should differ. It is true that 700 (reported) burns may seem small in proportion, but the final verdict did come from the jury, not you or me. They saw fit for punitive damages. The judge reduced that amount and then McDonalds settled for a different amount, which was obviously an increase to buy the victim’s silence. That speaks volumes. Regards.

“The National Coffee Association actually recommends that coffee be brewed at a temperature between 195-205 degrees.”

But if the argument is that McDonald’s was complying with industry standards, and was therefore not negligent, that theory was held to be false almost 100 years ago, by Judge Hand in In re Eastern Transportation (the TJ Hooper). There, he observed that “there are precautions so imperative that even their universal disregard will not excuse their omission.” In other words, even if the National Coffee Association says that coffee should be served at mouth-scalding temperatures, an entity complying with that inane recommendation may still be acting unreasonably dangerous.

Since this blog is written by a defense firm I(‘m not sure that the best place to start is with the objectivity of piece. But I agree with the many comments about the distinction between serving temperature and brewing temperature. McDonald’s could have settled this case for her actual damages. If it had done so perhaps it would not have invited criticism. For a long time it escaped appropriate censure because of the campaign to lampoon the case. This film appears to be a necessary corrective.

You criticize the Liebeck case and suggest it was non-meritorious but ignore the fact that the foundation of our civil justice system, a jury of our peers, found the case meritorious and determined that McDonald’s was partly liable for her injuries.

Rather than push for a level playing field, tort reformers and defense advocates like yourselves attempt to castrate the jury and neutralize their effect. I have yet to see any evidence that tort reform (e.g., higher burdens of proof, damage caps, immunities) reduces costs or protects the public’s interests. Instead, as Saladoff attempts to show, tort reform either prevents injured persons from getting to a jury or precludes them from being adequately compensated for their injuries.

Tangentially, defense firms miss the big picture. They fight for tort reforms that lead to less cases being pursued by the injured, which cuts down on defense firms’ caseloads. This leads to defense firms overworking cases and fighting against early resolution. This drives up defense costs and further alienates injured persons. Arguably, tort reform is driving up the costs of litigation for both sides.

Our jury system, which has been sculpted over several centuries, has shown the ability to sniff out non-meritorious cases and endorse community standards. Not all verdicts will be fair and just, but we have to trust the jury’s ability to determine the facts and be fair (and I am in a jurisdiction where juries find for defendants 90+% of the time). If a person or company causes some injury, partly or completely, why do you want to shield them from liability and prevent their conduct from being judged by a jury?

“The larger the verdict for the plaintiff, the larger the payday for the trial lawyer. It is noble to stand up for those who may have been wronged, but don’t present yourself as a disinterested party and cloak yourself in the guise of pure altruism when doing it.”

Um, duh. Each case builds a fiscal footing for the next as each attorney pays for the case out of his or her own pocket until it is resolved.

And when you consider corporate influence on legislation (see ALECexposed.org) which creates absurd fiscal barriers to a constitutionally guaranteed right to redress and obscene limitations to damages awarded by juries.

It would seem, apparently, that the corporation holds sway over the movie reviewer. Frankly, no “payday” is too small when your next opponent is the Chamber or WalMart or whatever multinational corporation is willing to spend anything to notch a legal victory or buy a Republican legislator.

Additionally GWB has extensive experience in product liability matters, including post-accident investigation and in all aspects of litigation. Fortune 500 corporations retain the firmto defend product liability claims in federal and state courts in the Southeast.

GWB represents many well known domestic and foreign manufacturers and distributors of pharmaceuticals, medical devices, biologics, foods, and cosmetics.

I find both the initial “review” and especially the comments at times insight and always engaging.

A few items: a “review” turns to an apologetic when ideology intrudes. I fear this turns toward the latter.

The tort system, as one commenter has noted, works when a jury level-sets the community standard which, over time, settles into a remarkably fair system for recourse and redress. That is, if it is left to regulate itself. Already, at least in my state, there are court rules that define frivolous as well as the penalties for presenting one. Anything else is just biasing the judiciary, which helps no one.

But there it is, the communal tone that, yes, underlies my comments–the larger good should be noted. With “tort reform,” the right to redress malpractice (which is one of the only real means of eliminating harmful physicians) becomes harder, even to the point that rights are neglected, bad medicine continues and protective and beneficial policies and procedures go unaddressed.

Was the coffee too hot? No, the coffee, which is supposed to be “hot” was, actually, “scalding” (for those who work with the plain language of statute, this should not be too quickly overlooked).

I do not order scalding coffee, nor do I have a reasonable expectation of doing so. I have an expectation of getting hot coffee just as I have the reasonable expectation that when I see a physician I will receive care and aid. When this doesn’t happen, then my open avenue to recourse allows me, a single individual, to influence the system, however minute, toward a greater benefit for both myself and others.

The fact is that McDonalds served the coffee at an extremely hot temperature knowing that it would result in injuries. McDonalds did this because the coffee would take so long to cool that the high temperature reduced the number of people who would get refills, thereby increasing profit. McDonalds, in effect, made cost-benefit analysis, and decided the cost of lawsuits from inevitable injuries was less than the additional profit from fewer refills. The jury made a rational and reasonable conclusion that McDonalds should be penalized for this, and chose a reasonable penalty of two-days of profit from coffee sales. The jury’s punitive damage award was then significantly reduced (as usually happens). Furthermore, the Plaintiff then ended up settling for an even less amount. The settlement agreement requires that the Plaintiff keep all the terms of the agreement confidential, but McDonalds is not bound by the same terms of confidentiality.

(1) The Jamie Leigh Jones case is much more complicated than the movie lets on. Journalists have looked into this case more closely because of all the issues it raises, and there were many problems with Jones’ case (just read the Wikipedia article for some sources). In fact, she lost in court before a jury of her peers (which is something some of the comments above should keep in mind, because several posts cite that the fact that Mrs. Leibeck won her case as if that were an important data point). In my humble opinion, I suspect Mrs. Jones was raped and did get the short end of the stick, but the case was definitely more complicated than the movie let on.

(2) The movie insinuates, but never *argues*, that juries make better decisions than legislators when it comes to settling tort claims and that legislators have no right to constraint juries’ decisions on this score. I am sympathetic to the movie’s insinuation, but the movie should have left this as more of an open question about how we should organize our society. In this respect, the movie went overboard in trying to sell us on the evil conspiracy of “tort reform,” when it should have left its audience with a question, instead of answer.

Despite the fact that the review above goes easy on the Hot Coffee in these two respects, I thought the review was wrong to call this movie “propaganda,” which I think is a term that is too easily abused. We need to raise the standard for what we consider genuine “propaganda,” because the way we use the term now it basically means “a point of view I don’t agree with.”

In my opinion, Hot Coffee presents a point of view, but it isn’t propaganda because (a) it doesn’t attempt to intentionally deceive its audience and (b) it doesn’t try to end the conversation, just start it. The movie tries to make its argument persuasively in a limited amount of time, which means it can’t present all the evidence. But unlike genuine propaganda, it doesn’t spread falsehoods or distort information in order to silence a particular perspective; it just invites us to regard “tort reform” with a much more critical eye than we would have otherwise. There are a few places where it crosses the line (e.g. #2 above), but this is pretty small in the grand scheme of things.

Speaking in regards to your statement that hot coffee is only dangerous when it is spilled by the negligent customer doesn’t really hold water in my book. It’s like saying that a broken threshold in the doorway is only dangerous when the customer negligently steps on it. The fact is that her injuries were foreseeable, as McDonalds had received many such complaints in the past. Foreseeability is a necessary component of negligence.

Also, from my experience in the dental field, the fact is that malpractice premiums continue to rise on all providers year after year regardless of how spotless their records might be. So while tort reform has decreased awards for plaintiffs and spelled big savings for insurance companies, responsible providers have felt no relief. For this reason I do not support professional organizations (for instance the ADA) that promote a tort reform agenda without pushing for more stringent regulation to weed out dangerous providers.